Blood on the Coal

The origins and future of ’s Accident Compensation scheme

Blood on the Coal

The origins and future of New Zealand’s Accident Compensation scheme

Hazel Armstrong 2008

Oh, it’s easy money stacking carcasses in the half-dark. It’s easy money dodging timber that would burst you like a tick. yes, easy as pie as a piece of cake as falling off a log. Or being felled by one.

extract from The Ballad of Fifty-One by Bill Sewell Hazel Armstrong is the principal of the firm Hazel Armstrong Law, which specialises in ACC law, employment law, occupational health and safety, occupational disease, vocational rehabilitation and retraining, and employment-related education.

ISBN no. 978-0-473-13461-7

Publisher: Trade Union History Project, PO Box 27-425 Wellington, www.tuhp.org.nz

First edition printed 2007

Revised and expanded edition printed May 2008

Acknowledgements The author would like to thank: Social Policy Evaluation and Research Linkages (SPEARS) funding programme for the Social Policy Research Award Rob Laurs for co-authoring the first edition Hazel Armstrong Law for additional funding to undertake the research Dr Grant Duncan, Senior Lecturer in Social and Public Policy Programmes, Massey University, Albany Campus, for academic supervision Sir Owen Woodhouse, Chair, Royal Commission of Inquiry into Compensation for Personal Injury in New Zealand (1969) for discussing the origins of the ACC scheme Mark Derby for editing the draft text Dave Kent for design and production

DISCLAIMER The views expressed in this paper should not be taken to represent the views or policy of the Social Policy Evaluation and Research Committee (‘SPEaR’). Although all reasonable steps have been taken to ensure the accuracy of the information, no responsibility is accepted for the reliance by any person on any information contained in this paper, nor for any error in or omission from the paper. 4 Introduction

When introduced in 1974, New Zealand’s state-run ACC scheme was the world’s first fully comprehensive, no-fault system for personal injury compensation. The scheme remains internationally unique today. No other country has found a more successful population-wide approach to addressing the multiple problems resulting from personal injury.

s this booklet explains, three major events in our Ahistory shaped our current ACC scheme. The first occurred in 1896 on the West Coast when an explosion in the Brunner coal mine killed 65 miners and left widows, children and elderly family members without adequate financial support. The second key event followed World War One, when injured soldiers returned to this country to find themselves unemployed, on meagre pensions and without adequate rehabilitation. Efforts to avoid repeating this social betrayal after World War Two were further developed by the chief architect of New Zealand’s accident compensation scheme, Sir Owen Woodhouse, whose 1972 report ushered in the era of a comprehensive, 24-hour, no-fault accident compensation scheme, administered by ACC.1 The guiding principles of the Woodhouse 1 ACC, as an organisation, first came into being in report still form the bedrock of the current accident 1974 with the passage compensation scheme. into law of the Accident Compensation Act 1972. However, these principles have been compromised by the ascendency of neo-liberal ideology and its influence on social policy in the late 1980s and 1990s. The Accident Rehabilitation and Insurance Act 1992, which came into force in the midst of the Bolger-led National government’s cutbacks to social welfare spending, exemplifies the shift 5 towards neo-liberalism. While most of the 1992 Act has since been repealed, the vestiges of several key provisions remain, notably work capacity testing that enables the insurer, ACC, to restrict its own liability but often results in adverse outcomes for claimants. Neo-liberal deregulation further impacted on ACC when, for a brief period from July 1999 to June 2000, New Zealanders were given a glimpse of a privatised accident compensation scheme for work injuries.

The opposition National Party has signaled that if it becomes the government after the 2008 election, it intends to re-privatise the ACC scheme, thereby re-introducing private insurance companies into the accident insurance 2 “National’s policy marketplace.2 This booklet argues for the retention of ACC is to re-establish a competitive market as a state-monopoly accident insurance provider. to provide accident insurance.” (National In March 2008 the ACC scheme was independently Party Leader , Address to NZ Large reviewed by PricewaterhouseCoopers. The review described Herds Association our ACC scheme as ‘the only system in the world that Conference, 21 March 2007 provides universal, 24-hour coverage for all accidental physical injuries. ACC was a groundbreaking world leader at its inception and remains today highly regarded by many 3 Pricewaterhouse- experts in the field of accident compensation.”3 The review Coopers, Executive summary, Accident concluded that “the current ACC scheme is consistent Compensation with the Woodhouse principles, adds considerable value Corporation in New Zealand, scheme review, to New Zealand society and economy, and performs very March 2008, p. i]. well in comparison to alternative schemes in operation 4 Ibid, p. xviii internationally.”4

The author of this booklet is a lawyer specialising in employment, accident compensation, and health and safety law. My professional experience has convinced me that a privatised accident compensation system, as proposed by National, would retard claimants’ rehabilitation and weaken injury prevention programmes.

6 I do not, however, claim that the current ACC scheme is ideal, since not all of Sir Owen Woodhouse’s original recommendations were fully and properly implemented. In particular, I argue that changes to the scheme are needed to deliver effective and meaningful rehabilitation to victims of accidents.

Thirty-three years after New Zealanders gave up the right to sue employers for accident compensation in favour of a fairer, more effective and universal system by which the whole community takes responsibility for accident victims, our ACC scheme, still the envy of the world, is at an historic crossroads. The 2008 general election offers an opportunity to retain the valuable features of this groundbreaking and socially equitable scheme, and to further improve it along the lines intended by its original architect.

This booklet is intended to help you, the voter, consider the issues affecting our ACC scheme at the next election. It traces the origins of the scheme from the grossly inequitable and cumbersome system which preceded it, when workers were obliged to sue their employers for compensation for workplace injuries, into a system based on principles of fairness for all and shared community responsibility. It outlines how, in my view as a compensation law practitioner, the proposed privatisation of personal injury insurance would be detrimental to claimants and to society in general. I argue that certain aspects of the current scheme, dealing with the full rehabilitation of accident victims, are not working as effectively and fairly as they should. Finally, I provide a list of questions to ask of your election candidates, to help make ACC an election issue and to guide you in voting for its future.

Hazel Armstrong April 2008 7 8 Working in the slough of despond: 1870s – 1900

For over 100 years New Zealand workers have received statutory protection in the form of a workers’ compensation scheme, although for most of that time the amount of compensation was often inadequate, and the process for claiming and receiving it was arduous and uncertain.

n the nineteenth century, British immigrants brought Ito New Zealand their understanding of workers’ rights and labour laws from an Old World entering an industrial age. In Britain, the increasing use of steam power, negligible safety standards and abject working conditions in factories and fields had created extremely hazardous working environments, and there was growing recognition that some form of legal protection should be afforded to workers. Workplace deaths and injuries resulting from poor working conditions led to workers claiming compensation from their employers. As the pressure on negligent employers grew, judicial minds were exercised and the judiciary developed common law defences that made it increasingly difficult for injured workers to succeed in their claims.5 The British courts tested liability against the fault 5 ‘Common law’ refers to the body of law principle – fault had to be attributed to a party for a claim established through for damages to succeed. This principle was used to reduce court action, rather than by Parliament. the economic demands on industry as well as on the cost of production. 6 Alan Clayton. “Some An “unholy trinity” of employer defences dominated reflections on the Woodhouse and ACC the landscape of nineteenth-century British industrial legacy” (2003) 34 law, comprising the doctrine of common employment6, VUWLR p449-450

9 7 The case of Priestley v voluntary assumption of risk and contributory negligence.7 Fowler (1837) 3 M&W1 established the principle Each of these employer defences eroded workers’ rights by of ‘common employment’ diluting employer responsibility in the event of workplace which stated that an employee was deemed injury or death. In addition to these common law defences, to have accepted the risk the English Parliament introduced the statutory roadblock of injury as a result of any fellow employee’s action. of limitation periods, which prevented legal actions being The doctrine of voluntary brought after a specified time period. This system was assumption of risk (or volenti non fit injuria) transferred largely unchanged to the booming, free-for- prescribed that on all colony of New Zealand. Any worker injured at their taking employment a worker voluntarily workplace was not entitled to compensation as of right, accepted the hazards of the job. but might be required to sue their employer, at their own The third employer expense and in the face of the same employer defences as in defence, contributory negligence, was Britain. repealed by the Contributory Negligence By 1891, death rates from workplace accidents and Act 1947. Prior to this, employees could violence in New Zealand were higher than in the ‘old be found guilty of country’ and, at 95.7 per 100,000 population, higher than contributory negligence 8 if their lack of care in some Australian states. One historian describes the contributed to their parlous state of affairs for New Zealand workers: own injury and this was a complete bar to a successful Work caused spectacular accidents and diseases…Timber claim. Ian Campbell. felling, which crushed dozens of men every year in the late Compensation for Personal Injury in New nineteenth century, was probably the most dangerous job. Zealand. pp6-8. Deaths from other forms of crushing in mines and quarries, 8 Margaret Tennant. or on road and railway works, were almost as common.9 Paupers & Providers – Charitable Aid in New Zealand. (1989) Wellington: Allen & Unwin NZ Ltd and Historical Branch of Internal Affairs, Port Nicholson Press, p164

9 Steven Eldred-Grigg. Rudolph (left) and Jack collecting donations New Zealand Working for their father Louis Lousich. Louis came to People 1890 to 1990. New Zealand from Yugoslavia ca 1875 and (1990) Palmerston North: Dunmore Press, married Sarah Chisnall, in Greymouth, in p66 1883. The accident described on the sign occurred in May 1884.

Alexander Turnbull Library Ref: G- 49635-1/2 Steffano Webb Collection 10 119 The 1890s’ West Coast coalfields have been evocatively 10 Len Richardson. Coal, described as a ‘slough of despond’.10 They were notoriously Class and Community – the United Mine hazardous working environments: “There’s always blood Workers of New Zealand on the coal”, miners said.11 In 1891, Richard Seddon, 1880 to 1960. (1995) : Auckland then the MP for and Minister of Mines, oversaw University Press, p65 the Coal Mines Act of 1891 which imposed a levy on all

11 Eldred-Grigg. (1990) as coal production. Seddon hoped that this would provide a above ‘sort of State insurance’ and that it would prevent injured miners seeking compensation from their employers.

However the utter inadequacy of the employer levy to provide for workers injured in mining accidents was demonstrated a few years later in the horrific form of the Brunner mine disaster of 1896, when an underground explosion killed all 65 miners. The aftershocks of this tragedy reverberated throughout the community: 39 widows and 192 children, as well as elderly dependents, were affected by the disaster.

Workers in the mining industry had already taken the initiative, through their union, of providing their own insurance by forming ‘friendly societies’. These offered a measure of financial assistance to members and their dependents in the event of injury or illness. The magnitude of the Brunner mine disaster, however, was such that these friendly society funds, along with the compensation available from the state-administered accident fund, were still insufficient to support the widows and families. Special charitable relief funds were established to help the families, and the Brunner Mine Accident Relief Fund attracted donations from throughout New Zealand.

Mass grave. Fifty-three of the victims of the Brunner mine explosion were buried in the Stillwater cemetery, 33 of them in this single grave. The funeral procession stretched 800 metres. (Te Ara - the Encyclopedia of New Zealand) 12 1896. Brunner Mine, Canterbury Museum

Ref: PhotoCD 2, IMG0073. City Libraries 13 Civil legal action against the coal company was a course of action open to the dependents of the Brunner Mine disaster. In 1898, 23 separate actions were brought (the claimants paying their own legal costs), alleging negligence against the mine owners. The families were initially successful, but the English owners managed to overturn the decision at appeal. The Brunner mine was closed, the remaining miners were dismissed and an agreement was reached whereby claimants 12 These actions were filed received a small lump sum of £75 each.12 under the Coal Mines Act 1891. The lawsuits brought in the aftermath of the disaster illustrate the polarising nature of common law actions in a small, highly connected society. Some members of the community were angry that the financial demands of the claimants (as distinct from the disaster itself) had brought the mining company to its knees and resulted in the mine’s closure. The legal wrangling led to bitterness among all parties – the claimants because of the legal costs and the pitiful payout, and the community because of the mine closure.

This event sowed the seeds for a plan in which New Zealanders gave up their right to sue in return for a more generous state scheme that compensated every New Zealander who suffers injury, whether at work, at home or on the road. Had the legal outcome for the Brunner mine disaster survivors resulted in handsome payouts and the mine remained open, then the debate about trading off the right to sue for a no-fault scheme might have taken a different route. In fact, New Zealanders gained an insight that litigation was a flawed process which could not necessarily deliver a favourable outcome for the injured party.

A statue commemorating the miners at Brunner.

Hazel Armstrong

14 15 A pension for the industrial soldier: 1900 – 1966

The Brunner Mine disaster had a galvanising effect on the debate about workers’ compensation. In the Legislative Council debate on the Workers Compensation for Accidents Act 1900, Hon John MacGregor raised the concept of the worker as an ‘industrial soldier’:

The artisan and the mechanic is like the soldier, in that both run a risk of death or horrid maiming, and that in the interests of others – of the community at large. The soldier has his pension, the industrial soldier should have his. The employer can insure his building against destruction by fire, his machinery against depreciation, and insurance forms a charge on the industry, one of the costs of production. Why should not the workman insure the only instrument of production he possesses – namely his life and limbs – against destruction by exploding firedamp, or unfenced machinery, 13 ‘Phossy jaw’ is a deadly from depreciation by lead poisoning or phossy jaw?13 And occupational hazard for those who work why should not such insurance constitute an incidental with white phosphorus charge on the industries, payable eventually, like the cost of without safeguards. 14 Chronic exposure to fire insurance, by the consumers? white phosphorus vapour caused the jawbone to rot away and ultimately could lead to organ failure and death.

14 Hon John MacGregor took his quote from The Economic Journal. This was cited in Hansard (1899) NZPD 108, 528.

Richard Seddon Alexander Turnbull Library Ref: F-58363-1/2. 16 1517 n the same period, other countries were outstripping INew Zealand in passing legislation to provide statutory worker’s compensation. As early as 1884, German Chancellor Otto von Bismarck passed the Accident Insurance Act which laid the ground for a scheme of workers compensation funded by employers. It provided for medical treatment and a pension equivalent to two- thirds of a worker’s wages if they suffered from permanent disability. By 1897, 40 other countries also had some form 15 Campbell. (1996) p12 of statutory protection for workers.15

New Zealand’s own Workers’ Compensation Act 1900 therefore passed into law against the backdrop of a catastrophic high-profile disaster at home and the consolidation of accident insurance law abroad. Initially this Act offered no more than rudimentary coverage and was restricted to dangerous trades. As with Seddon’s 1891 Coal Mines Act, employers in industries such as mining and manufacturing were required to pay a levy intended to cover the cost of work injuries suffered by their employees. In later years the legislation was amended more than 40 times until protection had been extended to most workers in employment, entitlements had improved and some occupational diseases were covered.

This workers’ compensation legislation ran in parallel with the common law which allowed workers to sue their employer for negligent actions that caused injury or death. However, employers were never required to pay both damages and compensation. If the worker failed in a damages action, they could apply to the courts to assess compensation but were barred from claiming compensation under the Act. The exercise of these common law rights proved costly and time-consuming and outcomes tended to be arbitrary. 18 Group of returned servicemen during rehabilitation after World War One. [ca 1919] Ref: F- 944-1/4 -MNZ. Alexander Turnbull Library, Wellington, N.Z.

The second event which forged New Zealand’s present workers’ compensation system was the experience of soldiers returning from World War One. During that war 45% of Wounded soldiers being evacuated from Gallipoli New Zealand men of military age served in the armed forces AWM A1798 and nearly 17,000 were killed. The survivors returned to find little preparation for their rehabilitation. Housing and satisfactory employment were difficult to obtain, and war pensions for disabled veterans, widows and orphans were well below the basic wage.16 16 Gustafson. (1980) p101

The need to re-integrate injured ex-servicemen into the workforce sparked the introduction of vocational rehabilitation and retraining. In 1931 the Disabled 19 Servicemen’s Re-establishment League was formed, funded initially by armed services’ charities and later by the RSA and the government. The League encouraged employers to take on disabled servicemen, to carry out vocational 17 Te Ara: ‘Returned training and, if required, to top up their earnings.17 After Services Association’, from an Encyclopaedia WW2, it also provided sheltered employment and training of New Zealand, edited to injured veterans with a level of disability 40% or higher.18 by A.H. McLintock, originally published in 1966. Te Ara – The By the 1960s, many of New Zealand’s leaders - politicians, Encyclopaedia of New academics, lawyers and judges – were men who had served Zealand, updated 26-Sep-2006, URL: in WW2. These returned servicemen were infused with http://www.TeAra.govt. a strong sense of social responsibility. They recognised nz/1966/R/Returned ServicesAssociation/en the widespread discontent with New Zealand’s workers’ compensation scheme which restricted earnings- 18 Te Ara: ‘War- rehabilitation’, ibid, related compensation to six years, even if the injured URL: http://www. person remained incapacitated beyond this period. The TeAra.govt.nz/1966/W/ WarRehabilitation/en combination of public-spirited decision-makers and dissatisfaction with the existing systems engendered a climate favourable to new ideas on workers’ compensation.

In 1959 Ian Campbell, Secretary of the Workers Compensation Board, undertook a study tour on behalf of the Board, assessing actions for personal injury claims in Great Britain, Europe and North America. He reported: The fact that a worker may have a remedy at common law also complicates the situation here in New Zealand. The line of demarcation between a successful claim and an unsuccessful one is extremely tenuous and not infrequently due to the plaintiff’s luck with witnesses, even to the extent of their veracity. If such a right were replaced by a pension on a sound and worthwhile basis, I consider workers generally would be better off. It should not place any more cost on industry for the cost of common law claims here is already 19 Campbell. becoming increasingly high.19 Compensation for Personal Injury in New Zealand (1996) p35 The momentum for an overhaul of the status quo gathered pace. 20 ‘More generous, full and fitting’ compensation: 1966 – 1974

In 1966 a Royal Commission on Compensation for Personal Injury in New Zealand was established to report “upon the law relating to compensation and claims for damages for incapacity or death arising out of accidents (including disease) suffered by persons during their employment and the medical care, retraining and rehabilitation of injured persons”, and to recommend changes.

wen Woodhouse, a Judge of the Supreme Court and Oa decorated veteran of WW2, chaired the Commission together with retired Secretary of Labour and Chairman of the Workers Compensation Board Herbert Bockett, and Geoff Parsons, an accountant. In their report of December 1967 the Commissioners rejected the model of the original Workers’ Compensation Act as fundamentally misconceived, since it was managed by private enterprise when its function affected a social responsibility.20 They 20 Personal Injury – a commentary on the cited the cost of the system and its inability to improve Report of the Royal accident prevention and effectively rehabilitate the injured: Commission of Inquiry into Compensation “… the Act works upon a limited principle, it is formal in for Personal Injury in procedure, it is meagre in its awards, and it is ineffective in New Zealand. (1969) Wellington: Government two important areas which should be at the forefront of any Printer. p18 general scheme of compensation.”21 21 Ibid They were acutely aware of the pitfalls of entrusting this social responsibility to insurance companies: “…the insurance system itself can offer no central impetus in the important areas of accident prevention and rehabilitation.” 21 Members of the Royal Commission. L-R: Mr Herbert Leslie Bockett, Mr Justice Arthur Owen Woodhouse (later Sir), and Mr Geoffrey Arnold Parsons.

[ca 29 September 1966] Ref: EP/1966/4146. Dominion Post Collection. Alexander Turnbull Library, Wellington, N.Z

22 To rectify this, the Commissioners thought that a scheme reliant on the acceptance of community-wide responsibility in respect of every injured citizen must be handled as a social service by a Government agency.22 22 Ibid, p19

The Royal Commission’s novel blueprint proposed that a 23 A ‘no-fault’ insurance system is one where state mechanism, the Accident Compensation Commission neither party is required as it was then, be established. The Commission was to to establish who was at fault for causing the provide comprehensive ‘no-fault’ coverage to victims accident or injury 23 of personal injury by accident. The trade-off for this 24 The Royal Commission 24-hour, seven-days-a-week insurance cover was that the proposed that non-earners should right to sue for damages at common law was relinquished. be covered. When Workers who incurred an income loss as a result of their initially introduced, the scheme covered personal injury would receive compensation related to everyone injured in a their earnings, and earners would be eligible for lump sum road accident, whether employed or not, and 24 payments. every person who was an earner. The scheme The triple goals of the radical proposed scheme were has been extended since 1972 to include (in order of importance) the prevention of accidents; non-earners, the victims rehabilitation of the victims; and compensation for injury. of treatment injuries, and victims of criminal In order to implement these goals, the Royal Commission offences. recommended a complete departure from the adversarial 25 Royal Commission of system which required proof of fault as a basis for Inquiry. Compensation for Personal Injury in compensation. The Commissioners regarded legal action New Zealand: Report of over negligence as a form of lottery and felt that this lack the Royal Commission 25 of Inquiry. (1967) of certainty demanded urgent legislative reform. Wellington: Government Printer, p19 It is important to appreciate the rationale behind the 26 Personal Injury – a creation of a new independent authority with an exclusive commentary… (1969), mandate to administer social insurance driven by a p6. In 1967, when the 26 Commission reported, principled approach. there were 61 private insurers or mutuals, The Commissioners thought it was inappropriate for a the state continued to provide insurance, comprehensive and compulsory scheme of social insurance and there were 48 self- to be administered by private insurers, with their dual insurers. motivations of minimising liability and maximising profit. The alternative model proposed by the Commissioners 23 represented a move towards collectivising the responsibility for personal injury by spreading the costs throughout the community.

Owen Woodhouse was mindful that private insurance was an expensive way to manage injury claims because of the heavy administrative costs. In a 1974 report, representatives of the Australian private insurance sector estimated that the private insurers’ overall ratio of administrative expenses to their total funds was 18%. One of that report’s authors thought that if the State took over administering worker’s compensation, private insurers 27 Compensation and would stand to lose 25% of their income.27 Rehabilitation in , Report of the The 2008 independent review of the ACC scheme National Committee of Inquiry July 1974. confirmed the low administrative costs of a state-run Appendix 7. scheme: New Zealand has lower claims management expenses (8% of total expenditure), than all Australian schemes (9-32%) and lower total administration expenses (24% of total expenditure) than the schemes providing comparable benefits… It is clear that ACC is paying a relatively high 28 Pricewaterhouse- portion of total premiums directly to claimant benefits.28 Coopers, Executive summary, Accident Compensation As current President of the Law Commission and former Corporation in New Prime Minister Sir Geoffrey Palmer pointed out recently: Zealand, scheme review, March 2008, p. xiii The ultimate issues in the New Zealand accident compensation reforms were not about the law. They were about values. They concerned social priorities. The choices were political. The debate was about which matters should be handled as a matter of collective community decision and which matters are best left to the market to be dealt 29 Palmer, 2004, p906 with on a commercial basis.29

24 He was ably supported by his Secretaries of Labour, one of whom was Herbert Bockett. Bockett was appointed to chair the Workers Compensation Board. In 1965 the Department of Labour suggested to Shand that a Royal Commission should be established to inquire into workers’ compensation, which at that time provided only limited benefits to injured workers. Shand agreed and on 14 September 1966, Owen Woodhouse DSC, a judge of the Supreme Court, Bert Bockett CMG, by then retired as Secretary of Labour, and Geoffrey Parsons, an accountant, were appointed to make up the Royal Commission of Inquiry into Compensation for Personal Injury in New Zealand. The origins of the present ACC scheme therefore arose on Shand’s watch. He was a Minister who encouraged a positive role for government in business and in workforce development. He was not afraid to lead a major reorganisation of the delivery of compensation to injured workers, which would exclude private insurers and eliminate Alexander Turnbul Library Ref: PICT-000082 Alexander Turnbul the need for litigation if that would result in an Tom Shand effective working democracy. MP, Minister of Labour, Minister in Charge Shand tabled the White Paper on Personal of Rehabilitation Injury in Parliament in October 1969, and Tom Shand was aged 43 when, in 1954, referred the matter to a select committee for Prime Minister Holland appointed him “intensive study”, and he affirmed his belief Minister of Labour and Minister in Charge of that “the proposals [in the Paper] would not Rehabilitation. He had entered Parliament be shelved”. However, he died of lung cancer eight years earlier as a National MP just two months later, before the committee representing provincial Marlborough. His war had begun its hearings. service in the Pacific had given him a keen Sources: interest in supportiong efforts to provide land Tom Shand, by www.dbnz.govt.nz for returned servicemen. Obituary Marlborough Express 11 Dec 1969:6 Shand had a farming background but had B Gustafson, The first 50 years of the National Party Reed Methuen 1986 p 85 encountered unionists when he worked in Ian Campbell, Compensation for Personal Injury in the flax and freezing industries. As Minister of New Zealand AUP 1996 Labour, he worked closely with the Federation Rt Hon Ted Thomas, ACC symposium University of of Labour, even if it meant challenging Prime Auckland 13 Dec 2007. Minister Holyoake and colleagues around the Peter McKenzie, The Origins of ACC in New Zealand Cabinet table. (2003) 34 VUWLR 194

25 ‘Comprehensive coverage, universal entitlement’: principles of the ACC scheme

It is useful to now look more closely at some of the most important principles underlying the Woodhouse Report, how these were later enshrined in legislation, and the extent to which they were implemented in practice.

or New Zealanders born after 1974, ACC has Fbeen a fixture of our public life, woven into the social fabric. Several generations have been spared the divisiveness of litigation, perhaps best epitomised by the legal minefield of multi-million dollar lawsuits in the US. New Zealanders are entitled to make a claim for cover if they have suffered an accident or an occupational disease within New Zealand. If their claim is accepted, the injured person is entitled to receive compensation, treatment and rehabilitation. The claimant does not have to prove fault. So long as they can demonstrate that the accident or occupational disease has caused injury, then they will be covered. In return, New Zealanders relinquished their right to sue for compensation for injury sustained from the negligent acts of others. The scheme is comprehensive in that it covers all New Zealanders whether at work, on the road or at home, on the sports field or for injuries suffered in the course of treatment. Entitlements are provided to earners and non-earners alike. The scheme was designed to promote injury prevention and provide claimants with complete rehabilitation. All of these services would be provided through a state agency – the ACC.

The Woodhouse scheme built upon the existing workers’ compensation scheme, which also ensured that injured 26 brought him national attention and he was appointed a Judge of the Supreme Court of New Zealand in 1961. In late 1966, Owen Woodhouse was asked to chair a Royal Commission on personal injury in NZ. He read the terms of reference as allowing the Commission to make recommendations concerning personal injury suffered by persons whilst working. He did not confine his report to considering work injury only, and recommended a universal accident compensation insurance scheme, abolishing the right to sue at common law. His approach to the terms of reference caused controversy, but Minister of Labour Hon Sir Owen Woodhouse Tom Shand accepted the report in its entirety. Lawyer, Supreme Court Judge, Chair of Owen Woodhouse wrote the Royal Commission Royal Commission on Personal Injury, report himself, wording it simply and elegantly Privy Councillor. for impact. The recommendations were a It was Owen Woodhouse’s legal experience team effort between Woodhouse, Bockett at the bar in Hawkes Bay that convinced him and Parsons (an accountant and third member of the Commission). The report of the need to abandon the right to sue for was made public on 13 December 1967. personal injury compensation. Hon Tom Shand described it as a “bold and His wartime experiences had also given him imaginative document”. It became known as first-hand experience of incapacity from injury. the Woodhouse Report. The findings were He served with the Royal Navy, where he rose based on five guiding principles: community to command a torpedo boat in the Adriatic. responsibility, comprehensive entitlement, He was awarded a D.S.C. In 1943 he worked complete rehabilitation, real compensation and on shore as a liaison officer with the Yugoslav administrative efficiency. forces- the partisans- under Tito and later went The reception to the report was varied: the as assistant to the Naval Attache in the British Law Society was split; the media and the Embassy at Belgrade. trade union movement cautiously welcomed When the war was over he returned to NZ and it; key Government officials, Labour Party practised law. He did a lot of motor vehicle Ministers and legal academics supported it cases, representing both sides in the argument wholeheartedly as its adoption would once for damages. He found it incredible that so more put NZ into prominence as a leader in much effort was put in to deciding who was to social legislation. blame. In the 1950s he became interested in Owen Woodhouse was knighted, became Privy no fault insurance, and supported Solicitor- Councillor and has been awarded the Order of General Richard Wild’s efforts to recommend New Zealand. no fault cover for motor vehicle accidents, where the injured victim would not need to Sources: “Compensation for Incapacity”, Geoffrey Palmer. prove fault to obtain cover and entitlement. Oxford University Press In the 1950s Owen Woodhouse was counsel “Compensation for personal injury”, assisting a committee considering the Ian Campbell, Auckland University Press, 1996. introduction of fluoridation in water to protect Interview with Sir Owen Woodhouse, 18 May 2007 the dental health of young children. The report “Special Honours: Sir Owen Woodhouse”, NZ Herald was accepted both in NZ and worldwide. This 6 February 2007

Alexander Turnbull Library Ref: EP/1966/4146. Dominion Post Collection. 27 workers received compensation set at 80% of their pre- injury earnings. But unlike that scheme, the new accident compensation scheme allowed compensation to continue so long as the claimant remained incapacitated. The six-year 30 Injured New Zealanders cut-off date contained in the old scheme was abandoned.30 receive 80% of their pre-injury earnings as The scheme as conceived by Owen Woodhouse and compensation for their loss. 80% represents his fellow Commissioners was intrinsically value-laden. the proportion of the individual’s loss These values, of comprehensive coverage and universal that ACC (and by entitlement, had been informed by the experiences of extension, the State and the community) British immigrants as well as the crucible of events such as will cover as part of the Brunner Mine disaster and both World Wars. the social contract and the protection afforded by community As social historian Tony Simpson asserted: responsibility. 80% also The political culture which grew out of the nineteenth- allows for a proportion of the loss to be left with century experience of emigration to New Zealand has the injured person; the continued to lie at the root of most of the social attitudes remaining 20% reflects the contribution made of New Zealanders and the political actions which have by the injured person. flowed from them. The experience of the depression of the 1930s reaffirmed these attitudes, and numerous subsequent studies have shown that they continue to underpin the most cherished beliefs of most of those who live here. These beliefs in the importance of accessibility to education for all; the availability of community-funded assistance during periods of unlooked-for or unavoidable adversity such as sickness, accident or unemployment; affordable and decent housing; and support in old age do not differ in any material way from the programmes espoused by the Chartists, trade unionists and others in nineteenth-century Britain who endeavoured to recover the moral economy they believed had been denied them by the changes through which they had passed. The political culture which grew out of the nineteenth- century experience of New Zealand’s British immigrants is appropriately perceived as one of the richest and most 31 31 Simpson, 1997, pp. prolific flowerings of that economy and its culture. 216-7 28 system, which allowed for centralised control of the industrial landscape. In 1960 Bockett was appointed Chair of the Workers Compensation Board and worked in this capacity until the Board was disbanded in 1976. During the early 1960s Bockett and Shand, along with Minister of Justice and Attorney General , Head of Justice Dr Robson, and Solicitor General Richard Wild, pressed for reform of the workers compensation scheme. They perceived that its entitlements were inadequate and that New Zealand was falling behind other countries. In fact, New Zealand was unable to ratify ILO Convention 121 concerning benefits for injury while in employment, because the Herbett Bockett standards in this country fell short of the Convention’s minimum requirements. Secretary of Labour, Chairman of Workers All the key people were in agreement: the Compensation Board and member of the heads of the two main government agencies Royal Commission for Personal Injury in NZ and their Ministers. National’s 1963 election policy was to steadily and systematically Following WW2, Herbett Bockett planned for improve workers compensation. New Zealand’s reconstruction as the Director In 1965 the Department of Labour suggested of the National Employment Service, and to Shand that a Royal Commission on in 1947 he became Secretary of Labour. personal injury be established. Bockett Bockett was part of a group of visionary had retired as Secretary of Labour in 1964, public servants who were appointed while so Shand was able to appoint him one Labour was in power, yet who served for of the three commissioners, with Justice many years under a National Government. Woodhouse as Chair. After the war, thousands of young men Herbett Bockett died in 1980, having played flooded back to New Zealand with high a key role in the origins of New Zealand’s hopes for a better country to live in. They unique ACC scheme. needed employment training and placements and expected improved conditions in the workplace. Bert Bockett expanded the Department of Labour’s functions and promoted policies of full employment, industrial health and safety, vocational training and Maori employment. He also Sources: developed rehabilitation services for those Holding the balance, a ’s incapacitated during the war. Department of labour. John Martin, Canterbury In 1951 Bockett implemented Government University Press 1966 policy against the locked-out watersiders. Compensation for Incapacity. Geoffrey Palmer, In 1960 he and Minister of Labour Tom Oxford University Press Shand strove successfully to retain a form “Bockett, Herbert Leslie”. Dictionary of New of compulsory unionism and the arbitration Zealand Biography, John E Martin.

Alexander Turnbull Library Ref: EP/1966/4146. Dominion Post Collection. 29 The five guiding principles proposed by Woodhouse and his fellow Commissioners encapsulated the above concerns and represented a socialised response to accident and injury. Those principles are: • community responsibility • comprehensive entitlement • complete rehabilitation • real compensation; and • administrative efficiency. The principles of community responsibility and complete rehabilitation are examined below.

Community Responsibility “Everyone was to be looked after – it was the community’s responsibility to do it. Beneath the idea 32 Sir Geoffrey Palmer “The lurked a definitely collectivist set of values”.32 Future of Community Responsibility” (2004) The notion of community responsibility underpins the 35 VUWLR 905, 909 ACC scheme and is elegantly articulated in the Woodhouse Report: The first principle is fundamental. It rests on a double argument. Just as a modern society benefits from the productive work of its citizens, so should society accept responsibility for those willing to work but prevented from doing so by physical incapacity. And, since we all persist in following community activities, which year by year exact a predictable and inevitable price in bodily injury, so should we all share in sustaining those who become the random but statistically necessary victims. The inherent cost of these community purposes should be borne on a basis of equity by the community. 30 Community responsibility was to be realised in practice through the complementary function of the second principle – comprehensive entitlement. The costs of personal injury could be minimised if loss was spread through the community, that is, if the injured person’s burden was socialised. The Commissioners were explicit in their view that it was incumbent upon the State to embody this concept: First, in the national interest, and as a matter of national obligation, the community must protect all citizens (including the self-employed) and the housewives who sustain them from the burden of sudden individual losses when their ability to contribute to the general welfare by their work has been interrupted by physical incapacity.

Complete Rehabilitation The Royal Commission considered that the nation had a clear duty and a vested interest to promote and foster “the physical and economic rehabilitation of every adult citizen whose activities bear upon the general welfare”. The Commission packaged this notion as an economic imperative: “If the wellbeing of the workforce is neglected, the economy must suffer injury.” The Commission saw all New Zealanders contributing to a national effort so that “the process of rehabilitation should be developed and encouraged by every means possible as it has much to offer New Zealand both in human and economic terms.”33 33 Royal Commission of The consideration of overriding importance must be to Inquiry. (1967) p20 encourage every injured worker to recover the maximum degree of bodily health and vocational utility in a minimum of time. Any impediment to this should be regarded as a serious failure to safeguard the real interests of the man himself and the interest to which the community has in his restored productive capacity.34 34 Ibid, p40 31 The Commissioners analysed rehabilitation and its benefits at some length: The rehabilitation process clearly is able to provide great benefits. Independence and self-respect, an alleviation of the strain of incapacity, and some mitigation of money losses are offered to the man himself. And apart from humanitarian considerations there is for the community the advantage of increased production and the avoidance of some of the economic costs of incapacity. It is a process which should be supported widely and made available to all who might be assisted by it: and the test for assistance should never demand that the advantage to the patient must always balance the cost to the nation. The Commissioners recommended that a special rehabilitation benefit could be provided to act as an incentive for vocational rehabilitation, and described the elements of vocational rehabilitation: “It covers everything from the evaluation of aptitudes, skills and experience of the client to his training or retraining for a new occupation”. The Commissioners envisaged assessment facilities and facilities for training, and that the Government would provide grants and subsidies to encourage training of the disabled for employment. The assessment is not merely of the patient’s physical condition and the likely state he will reach after appropriate medical treatment: it must extend to an appreciation of his intelligence, educational standards, mental and emotional state, general aptitudes and adaptability, motivation, resilience and social and 35 Ibid, p109 economic background.35 The Commissioners recommended that a permanent periodic payment would be made (after assessment) for those suffering permanent partial incapacity. The purpose of this permanent pension, which could never be reduced, was to act as an incentive on those who were being rehabilitated. 32 Even after they returned to work, and weekly compensation ceased, the permanent pension would be retained. Many politicians on both sides of Parliament had experience of WW2 and were aware of the difficulties faced by returned soldiers, including their rehabilitation needs. Mr Young, National MP for Miramar, said during the second reading of the Bill: We remember the part [rehabilitation] played during WWII in re-establishing people as useful members of society. It is equally important that a person injured, whether in industry or as a result of a road accident, should be rehabilitated so that he can continue to play a proper part in the community…our purpose is to promote rehabilitation so as to seek to restore all such earners and persons to the fullest physical, mental, social, vocational and economic usefulness of which they are capable…. The Bill does take care of rehabilitation. It lays the groundwork for consideration of people and their rehabilitation to a greater extent than ever before in the history of our country.36 36 Hon Mr Young speech to House Hansard 3 The select committee considering the original Accident October 1972, p.2996 Compensation Bill reiterated Owen Woodhouse’s words: The objective in all cases must be, as quickly as possible, to get injured persons back onto productive employment and to enable them to become useful members of the community once more…It is essential that those who are seriously injured should not be regarded as outcasts or as social misfits. This has often been the case in the past. Even today the extent to which the body and spirit of man is endowed with reserve powers and functions is not fully recognised. Much can be done even for the person who has serious permanent injuries. It is now known that a man can take his place in the community not only

without a limb, but even without other organs which 37 Gair Select Committee were once considered vital to the human being.37 Report para 257 33 The 1972 Act provided for retention in pre-injury employment where possible and training/retraining for those injured workers who could not be reinstated into their pre-injury employment. Injured workers could make arrangements with ACC concerning examinations, completion of apprenticeships, obtaining employment experience, paying for costs of training, funding for travel and accommodation assistance if training was required away from home.

Unfortunately, however, the principles expressed in the 1972 legislation in regard to rehabilitation have not been fully and systematically enacted. In 1988 the Law Commission noted that although the legislation recognised the critical importance of rehabilitation, ACC had a lack of national policies and programmes, and employers lacked 38 The Law Commission. incentives to provide retraining.38 As a result, injured (1988) Personal Injury: Prevention and people have often remained on weekly compensation for Recovery. Wellington: years on end, even though they may have been keen to NZLC R4, p42, para 157 return to work.

34 ‘Legislation which leads the world’ – passing the ACC Bill

ollowing delivery of the Woodhouse Report, FHon. Tom Shand, Minister of Labour in the Holyoake- led National government, told Parliament in 1969 that: the Commissioners have proposed a bold blueprint of total reform in the realm of compensation for personal injury; a unified and comprehensive system to replace a variety of disconnected remedies which they described as a ‘fragmented and capricious response to a social problem.’ The Commissioners, said Shand, believed that “in the national interest and as a matter of national obligation the community must protect all its citizens”. The Minister was unequivocal on the benefits that should be delivered: “…the alternative compensation provided in workers’ compensation legislation must be more generous, full, and fitting than it is today.”39 39 Campbell. (1996) p42

The Bill received its final reading in Parliament in December 1971. The Labour opposition supported the Woodhouse principles but did not believe the Bill went far enough to implement them. Hon. Mr Faulkner, Labour MP for Roskill, told the House: I hope we can amend it and introduce not only the letter of the Woodhouse report, but also the spirit of the concept behind that report. This Parliament will then be able to say that once again it is a leader in social responsibility.40 40 Hansard 3 October 1972 3024 Second The government, however, was justifiably proud of this Reading of Accident Compensation Bill world-leading initiative and Prime Minister Hon. introduced the Bill’s third reading with the words: This is a very advanced piece of legislation which I believe we will look back on as a landmark in our social welfare 35 development. I think it is the most important piece of legislation since the introduction of social security, and I believe that will be the verdict of history. I am proud to have been associated with it and proud that the National Government has taken the lead in introducing legislation 41 Rt Hon J Marshall which leads the world in this field.41 Hansard 18 October 1971 p.3445, 3rd Reading of the Accident Compensation Bill The impact of neo-liberalism in the 1980s and 1990s

In 1972 the Accident Compensation Act was passed and its provisions became effective from 1974. The introduction of the ACC scheme marked a sudden and dramatic improvement for people affected by any form of injury or accident. They could now receive weekly compensation and treatment as of right, quickly and easily, without recourse to expensive litigation. However 15 years later, well before the scheme had a chance to mature, it became a target for politically driven reforms.

In the 1980s and 90s neo-liberal politics, with its emphasis on free market economics, reinforced the interests of 42 Neo-liberalism can be private insurers.42 Neo-liberal values influenced the 1992 broadly defined as a political and economic amendment to the Accident Compensation legislation ideology that advocates which adjusted individual employer levies on the basis the reduction of government intervention of claims costs, prescribed entitlements for claimants, in the economy in favour privatised the employers’ account and introduced the work of corporate control of the market. capacity test. Neo-liberalism achieved prominence in New Zealand political discourse through the radical restructuring of the economy that occurred during the late 1980s and early 1990s. After the fourth Labour government took office in 1984, Finance Minister Roger Douglas, in response to the economic downturn following the Muldoon administration, initiated a series of economic reforms

36 Ruth Richardson, , Bill Birch and Simon Upton. National Members of Parliament elected in 1990. including the deregulation of the financial market, the creation of profit-driven state-owned enterprises and the privatisation of national assets. In 1990 National returned to power under Jim Bolger and continued the programme of economic restructuring started by Douglas. Welfare services and industrial relations bore the brunt of the reform packages, which included widespread cutbacks to benefits and allowances and the introduction of the Employment Contracts Act 1991. However, workers’ entitlements under ACC in relation to rehabilitation were also under attack.

The Bolger Government took the view that the cost of the [existing] scheme was unsustainable. (As noted earlier, the number of claimants receiving weekly compensation payments was steadily growing, but this was a consequence of a failure to fully rehabilitate those claimants, and was not a structural flaw in the scheme.) A working party 37 known as the Galvin Committee, after its Chair, was tasked with minimising “the cost to society of the system 43 New Zealand Ministerial of compensation for incapacity”.43 Working Party on the Accident Compensation The terms of reference given to the Galvin Committee Corporation and Incapacity: Report specified that any workers’ compensation scheme had to to the Ministers of provide greater freedom of choice among alternate insurers, Labour and Health, 1991, Wellington, New competition between public and private sector insurers, Zealand. and minimal barriers to competition among insurers. The Galvin Committee recommended a staged process towards the eventual privatisation of the ACC system. Stage One prescribed the reduction of benefits, required the scheme to pay for public health services used, introduced experience rating whereby employers paid a levy linked to the cost of their claims, and the funding of the Scheme on a pay-as- you-go basis. Stage One was executed by the enactment of the Accident, Rehabilitation and Compensation Insurance Act (ARCI) 1992 Act.

This Act also resulted in a significant change in direction for rehabilitation, one that amounted to a deviation from the Woodhouse benchmark, by limiting the amount and extent of rehabilitation assistance that could be given to an injured person. These regulations replaced the flexible, although underused, provisions in the existing ACC legislation. The 1992 Act introduced work capacity testing to assess a claimant’s ability to return to work, with weekly compensation ceasing if the person was deemed fit for work, whether or not they had a job. The Act also removed access to lump sum compensation for pain and suffering and loss of enjoyment of life, replacing it with a small independence allowance which recognised impairment only.

The work capacity test evolved from the National Government’s concern at the rising costs of ACC, and their aim of limiting liability for the insurer. The work capacity test (and in its current guise, the vocational independence 38 Bill Birch Cartoon by Tom Scott process) gave ACC certainty by fixing an endpoint to its liability – weekly compensation ended three months 44 ACC’s liability had 44 previously ended after a claimant was deemed to be fit to work. On top once the person was of this, the Minister for ACC, Bill Birch, speculated that actually fit for work, as opposed to being the new system would expose “hidden unemployment” deemed fit for work or malingerers who were unfairly taking advantage of the by ACC. Occupational and medical assessors benefits of weekly compensation. interview and examine the claimant, and The work capacity test allowed ACC to cease paying provide a report to ACC on their assessment of weekly compensation to injured workers if an occupational whether the claimant and medical assessor deemed them capable of working 30 can work 35 hours or more a week in a hours or more a week in a job. The test was riddled with nominated job. It is an difficulties for the claimant, since no actual job needed irrelevant consideration whether or not the to be available for a claimant to be assessed as having a person is in work. 39 capacity to work, and the job could be at a much lower income and skill level than the pre-injury employment. Moreover, the priority for rehabilitation shifted to removing long-term claimants from the scheme. This arbitrary mechanism did, however, achieve results of a sort. As Grant Duncan notes: ‘In a stroke, [Birch] redefined the status of many claimants from “injured person” to 45 Grant Duncan. “Moral “unemployed person.”45 Hazard and Medical Assessment” (2003) The vocational rehabilitation outlook was bleak. Not VUWLR 34 433, 435 only did ‘the insurance-based principles of the Accident Rehabilitation and Compensation Insurance Act 1992 br[ing] in the concepts of individual (as opposed to community) responsibility and of work-capacity assessment’ but scant attention was actually being paid to 46 Ibid, 441 rehabilitation.46

The politically charged nature of the ACC debate was further illustrated when the National Government, supported by the employer and private insurance lobbies, opened the employers’ account up to competition. The employers’ account was privatised through the Accident Insurance Act 1998, ‘the AI Act’ which aimed to introduce competition to aspects of ACC’s business and introduce insurance concepts and principles to the administration of the scheme. The AI Act 1998 required all employers to purchase accident insurance for work-related personal injuries suffered by their employees and enabled self-employed persons to purchase accident insurance from insurers other than ACC for both work-related personal injuries and non- work injuries (other than motor vehicle injuries).

The work capacity provisions of the ARCI Act 1992 were carried over into the AI Act 1998. Their essential objective was for the claimant to attain a capacity for work in any occupation for which they were suited by reason of 40 education, training and/or experience, irrespective of how low-skilled or poorly-paid the occupation or whether it was available in the labour market.

The incoming Labour Government of 1999 took urgent steps to repeal the AI Act 1998 and restored the state-run scheme, but did not fully restore its original provisions. The new government did not, for example, repeal the work capacity provisions but simply renamed the assessment procedure the ‘vocational independence’ process. The work capacity test had operated principally as a device to remove long-term claimants from funding, so there was little incentive for ACC to invest in rehabilitation, let alone retraining, for those claimants. This function has largely been replicated by the vocational independence process. As Duncan comments: …the determination of vocational independence creates the possibility that those with permanent partial disability who cannot return to their previous occupation may be exited from the scheme, on the basis of a capacity to be employed in an occupation of a lower status and lower income than that enjoyed previously – regardless of the availability of any actual job in that new occupation. There is no compensation for long-term loss of earnings, no statutory requirement to retrain the claimant in an occupation of a similar social and economic status, and no follow-up to evaluate the claimant’s subsequent employment or income.47 47 Grant Duncan. “Advancing in Ross Wilson, President of the New Zealand Council of Employment: the way forward for vocational Trade Unions, describes the difficulties associated with the rehabilitation” (2004) 35 successful implementation of rehabilitation strategies: VUWLR 801, 803 … we have a legislative shambles created by the ill- informed legislators and advisors of the 1990s, funding difficulties created by the unwise political concessions to the employer lobby, and an administration struggling to 48 Ross Wilson. survive let alone achieve successful return to work and “Rehabilitation and rehabilitation programmes.48 Return to Work” 2003 41 The Notion of Fairness Fairness is a quintessentially New Zealand value – everyone should get a fair go and if possible equal treatment. From the 1930s to the mid-1980s, New Zealand social policy was able to provide a broad range of basic health, welfare and educational services on a fair and approximately equal basis 49 Wilson, Marie.G and to most New Zealanders.49 A commitment to fairness on Allison Enright. New Zealand’s Workforce the part of socially minded legislators was ingrained in social Policy in Sharp, Andrew policy. (ed). (1994) Leap Into the Dark. Auckland: Auckland University The Woodhouse Report invokes fairness: Press, p126 The compensation purpose of the scheme is not to provide merely for need but to shift a fair share of the burden suddenly falling upon individuals as a result of personal injury… Since the object is compensation for all injuries, irrespective of fault and regardless of cause, the level of compensation must be entirely adequate and it must be assessed fairly as between groups and as between individuals 50 The Royal Commission within those groups…50 of Inquiry. (1967). p108 In 1995, Sir Owen Woodhouse commented: Our social responsibilities are not to be tested by clever equations or the latest economic dogma. They depend upon decent fellow feeling and the ideas and ideals which support it. That I am sure is the continuing attitude of New Zealanders. It is something which ought to be applied 51 Personal to the future of the accident compensation scheme.51 correspondence June 2007 If ACC were required to rehabilitate and retrain a victim of personal injury into a job, equivalent in economic and social status, to their pre-injury situation, that, in the author’s view, would provide a fair return on the social contract. Woodhouse contended that vocational rehabilitation was beneficial to society as it facilitated a worker’s return to productive employment. To achieve this end, he and his fellow Commissioners promoted a 42 scheme that encouraged every injured worker to attain the maximum degree of vocational utility. Woodhouse resisted the notion that the test for determining rehabilitation entitlement should balance the cost to the nation with the advantage being provided to the injured person.

Woodhouse’s rationale for complete rehabilitation has been imported into the IPRC Act 2001 which states that a claimant is entitled to be provided with rehabilitation 52 section 87(1)(b) IPRC Act 2001 by ACC to assist in restoring their health, independence and participation to the maximum extent practicable 53 A claimant is made vocationally independent (emphasis added). In reality, however, the claimant is of the scheme if they are deemed to be able to often rehabilitated to a level below the maximum. This is engage in employment, because the legislation gives clear direction to ACC that for which they are 52 suited in terms of their any rehabilitation provided must be cost effective. This education, experience test elevates short-term, individual cost effectiveness over and/or training, for more than 35 hours long-term claimant and societal benefits. per week. If the worker is deemed vocationally Although the 2001 Act promotes rehabilitation as a independent, weekly compensation will cease principal objective, the combined effect of the cost- within three months. effectiveness test and the vocational independence53 54 The size of the provisions is that these (predominantly) ‘long-term’ ‘longterm’ claimant claimants are removed from the scheme before they population should be emphasised. ACC’s data 54 are ready. This relieves ACC of any responsibility to on rehabilitation rates retrain injured workers or ensure that they are retained in indicate that 60-70% of claimants have returned sustainable employment. to work or independence after three months, and It is also important to note that there is no requirement about 90% after 12 months (ACC, 2005). that a claimant is made vocationally independent in an This means that one in occupation of equivalent social and economic status to ten claimants can be regarded as longterm, their pre-injury employment. In other words, the pre- or in receipt of weekly compensation for longer injury occupation establishes a ceiling that determines the than three months. vocational options available to the claimant at the outset This accords with the definition of longterm of the vocational rehabilitation process. This is a far cry applied in Crichton from the aspirational nature of complete rehabilitation as et al - Returning to Work from Injury: advanced by Woodhouse. Longitudinal Evidence on Employment and Earnings (August 2005). 43 Grant Duncan identifies ACC’s distrust of claimants’ motives as an issue: The problem with this assumption of distrust, which is now built in to law, is that it does not recognise that there may also be strong willingness to return to work, to retrain for work if need be, but on one’s own terms, rather than under the direction of administrators. And hence there is a 55 Grant Duncan. “Moral source of frequent conflict.55 hazard” (2003) 34 VUWLR 433, 434 There are conflicting values within the accident compensation legislation: the notion of fairness that Woodhouse envisaged is contained in the expectation that the injured person would be rehabilitated to their maximum vocational utility; however, this notion is undermined when ACC applies the test to satisfy itself that any such rehabilitation provided should directly result in a reduction in entitlements. Once ACC determines that the injured person is deemed fit for work of any kind, it can cease paying weekly compensation. Assessing a person as fit for work irrespective of labour market realities falls well short of assessing maximum vocational utility and fails the test of fairness.

In addition, effective injury management by ACC makes good economic sense to the country. The Pricewaterhouse- Coopers 2008 review estimated that the benefits of effective injury management are already worth $315 million per annum, and this figure could be further enhanced by 56 Pricewaterhouse- improving the ability of injured persons to work.56 Coopers, Executive summary, Accident Compensation Corporation in New Zealand, scheme review, March 2008, p. ix

44 , 17 August 1883 New Zealand Tablet 45 Asbestos: the wonder product

A versatile but highly dangerous building and insulation material, asbestos was widely used in New Zealand until the mid 1980s, when its harmful effects finally became well understood. People exposed to asbestos do not usually suffer its ill effects, which include potentially fatal diseases such as mesothelioma, until 20 to 40 years later. This time lag helped the manufacturers and sellers of asbestos to deny responsibility for its deadly effects, and has both tested and affirmed the fundamental principles of New Zealand’s workers’ compensation legislation.

Asbestos is strong, flexible and impervious to electricity and fire. With the advent of steam-driven power, heat- resistant substances were at a premium and asbestos seemed the perfect solution for lagging boilers and steam pipes. In 1885 the American Henry Ward Johns took out patents to manufacture roofing materials from asbestos, then diversified into asbestos paints.

Asbestos was soon associated with safety and industrial progress. It was cheap and adaptable, a useful replacement for wood and brick. James Hardie, a Scot who had migrated to in 1851, started using asbestos fibre cement in 1888 as a substitute for slate to roof railways workers’ huts. By 1917 his product, now named fibrolite, began rolling off James Hardie production lines in Australia and by 1938 Hardie had opened a factory in Penrose, Auckland. Soon fibrolite housing sprawled 57 Asbestos House, the over the New Zealand hills. “The material can be cut, secret history of James Hardie Industries, scored and sawed with the normal tools of trade. It is Gideon Haigh. Scribe non-irritating to the skin and non-toxic” advertised James Publications PTY Ltd, 2006 Hardie in 1955.57 46 , 18 August, 1888 Times Tuapeka The health hazards of asbestos were already known by 1930, and by 1933 eleven cases had been brought against Johns, the original patent holder, by sufferers of the lung disease asbestosis. These cases were quietly settled for $35,000 each.58 As early as 1939, health department 58 Asbestos House ibid officials in , Australia recommended informing page 30 workers of the hazards of asbestos. In 1953 the British Journal of Industrial Medicine suggested that asbestos workers faced a risk of lung cancer 11 times that of the general population. James Hardie tried unsuccessfully to suppress publication of this article.59 59 Asbestos House ibid page 48 However medical academics and public health officials showed only passing concern for the mounting evidence of the health effects of asbestos, and in the first half of the 20th century Hardies was under no pressure to change its production of asbestos materials. In 1964 the tide started to turn following a study of over a thousand asbestos-insulation workers. British television ran an expose of passengers exposed to asbestos in British Rail passenger coaches, and workers in dockyards. Union activity mounted to protect workers from asbestos and to compensate victims of asbestos-related diseases. Even so, the annual importation of asbestos into New Zealand continued to rise, peaking in 1974. 47 Alexander Turnbull Library Ref: Eph-C-BUILDING-SUPPLIES-1953-01-1 Alexander Turnbull

By the 1960s Hardies in Australia was settling claims for asbestos illnesses and calculating its future liabilities, expected to peak between the years 2000 and 2010. If such claims were also made in New Zealand at that time, they have not been publicised because it would have been in Hardies’ and Fletchers’ interests to settle those claims confidentially, to avoid further litigation.

After 1974, our no-fault accident and occupational disease scheme removed the right to sue for all injuries sustained, and for those diseases where exposure to asbestos occurred after 1974. When New Zealand workers began to bring forward their own cases of asbestos-related disease, the newly-established scheme was severely tested by the need to adequately compensate for these often devasting diseases. The legislation was amended several times, and is currently facing further amendment.

Our ACC scheme originally excluded from cover those exposed to asbestos prior to the scheme’s commencement, 48 Alexander Turnbull Library Ref: EP-1990-1381 Alexander Turnbull Mark Round, 1991 Robin McKenzie at Wellington Hospital with his wife Shirley. yet there was huge exposure to asbestos products in New Zealand during the building boom of the 1960s and early 1970s. Thousands of tons of asbestos had been used in insulation, applied to boilers and pipes, and sprayed as a fire retardant in homes, commercial buildings, power stations, railway workshops, hospitals and schools.

Robin McKenzie worked in New Plymouth during the 1960s and 1970s for the state-owned Electricity 49 Corporation of NZ (ECNZ). After 1974 he was diagnosed with mesothelioma and, since his exposure to asbestos had occurred prior to that date, he began the long, slow process of suing ECNZ. He reached an out-of-court settlement in 1993, said to be for $2 million. The National government’s response was immediate. ACC Minister Bill Birch prevented further litigation in similar cases, and cancelled entitlement to lump sum compensation. Instead, those suffering from an asbestos-related disease were only entitled to a weekly payment of $67 for the remainder of their life, surely one of the meanest compensation systems for asbestos victims in the world. This amendment to the original ACC legislation constituted a breach of the social contract by which New Zealanders traded off their right to sue in return for fair and adequate compensation.

Birch’s amendment was strongly opposed by the labour movement and the Parliamentary opposition. The incoming Labour government therefore again amended the ACC legislation in 2001 by reintroducing lump sum compensation. The first recipient of the new compensation

The Dominion, 1 April 1993 50 Johm Selkkirk/Dom Post October 20 2006/ ID 166274 Juanita Angell and her late husband Vic. Married for 48 years, he was diagnosed with terminal cancer caused by exposure to asbestos. ACC offered him $67 a week, but they decided to fight for lump sum payment. She took his case to the Court of Appeal to obtain lump sum compensation and won, while he was still alive.

was Lower Hutt signalman Jim Lind. However, he was successful only because he was still exposed to asbestos after the 2001 amendment came into effect. His signal box in the Hutt suburb of Taita was roofed with asbestos which had begun to deteriorate, with dust settling in his office.

Jim Lind’s case was followed by others whose exposure 60 Lind 22/5/03 ACC 60 Review Number 20190 to asbestos had occurred prior to 2001. ACC declined DRSL 4110 these claims and litigation commenced. In 2006 the 61 The IPRC Bill (No Court of Appeal determined that those cases should 2)2007 also receive lump sum compensation for their invariably 62 AVV v The Estate of fatal asbestos related diseases. This decision resulted in a Lehmann 11/8/04, proposal to extend lump sum entitlement to all workers Judge Ongley, DC Wellington 225/04 and suffering occupational disease, regardless of when they The Estate of Priddle 61,62 and Others v ACC CA were exposed. The Labour administration proposed a 223/05 19 October Bill, currently before the Select Committee, entitling all 2006. 51 workers suffering occupational disease after the Bill comes into force to receive up to $113,363, depending on their level of impairment at the time of assessment.

Asbestos use remains a problem in New Zealand. Although it has not been sold here since the ban on imported raw asbestos in 1991, thousands of tons are still in this country’s buildings and dumps. Most houses built before 1975 would have asbestos products somewhere. These products have a lifetime of 25 to 50 years, and when repairs, refurbishment or demolition takes place the asbestos is exposed beneath cladding, ceiling tiles or flooring. The workers engaged in this work are frequently not aware of the hazards of asbestos. Particular risks are posed by water blasting of asbestos cement roofs, floor sanding to remove backing from vinyl floors, disturbance of asbestos cladding, removal of textured ceilings, building rubble, fires in older buildings shedding asbestos, and 63 “The management stripping old boilers for copper.63 of asbestos in NZ workplaces”, a report Compensation under the ACC legislation, including the commissioned by DOL in 2007. proposed amendment, is available only to workers exposed to asbestos at work. Members of the community and families who suffer asbestos-related disease not related to their work will not be compensated under the Act. Their only recourse is through civil action: finding someone to sue who has negligently exposed them to asbestos. While the likelihood of exposure to asbestos fibres is increasing as the aging housing stock needs repair or demolition, the chances of finding someone to sue is diminishing. Those non-work-related victims of asbestos poisoning may therefore be denied compensation, and will pose a growing problem for our society.

The contrast between their situation and that of workers exposed to asbestos underlines the virtues of our ACC scheme, which delivers smaller amounts of compensation 52 Andrew Gorrie/Dom Post December 6 2007/ ID 210953 Suruj Singh, 75 with her great grand-children Jessica 3, and Vanessa 17 months and her daughter Reena Woodford. They fear for their health as asbestos is being removed next door to their house in Miramar, Wellington. The old Masonic Hall was being demolished and asbestos was found in the rubble.

than if victims successfully sued, but delivers those sums much more quickly, cheaply and easily and thus benefits both the claimants and the wider society.

The example of asbestos shows how fundamentally sound in practice, and how flexible the state-run accident compensation scheme is. Over its 24 years of existence it has been adapted – sometimes adversely affecting claimants to such an extent that the changes have breached the social contract upon which it is based – but it has also shown that it can be restored, extended and improved in the light of our evolving understanding of health and safety.

53 Conclusion

n the tradition of New Zealand’s world-leading social Ipolicy innovations of the 1890s and 1930s, ACC represented a radical and unique system for handling the consequences of personal injury by accident.

ACC’s creation is indebted to three key events: the aftermath of the Brunner Mine Disaster in 1896, the return of injured servicemen from both World Wars and the perspicacity of the Woodhouse Report. The first two events highlighted the need for the community to rally in support of the injured and dependents of victims of trauma, whilst the Woodhouse Report articulated the blueprint for giving effect to this community support.

This Report laid the foundation for a comprehensive no- fault scheme of accident insurance which is available to all New Zealanders. The ACC scheme cut a swathe through the morass of existing remedies, and required New Zealanders to trade off their right to sue in exchange for 24-hour coverage. Sir Jack Marshall, a former National Party Prime Minister, said when he introduced the scheme into Parliament that the ACC scheme was a “landmark in our social welfare 64 Rt Hon. J Marshall development and world-leading social legislation.”64 Hansard 18 October 1971 p.3445, 3rd The vision of the Royal Commission was to be realised reading of the Accident Compensation Bill through the implementation of five guiding principles. This paper has focused, in particular, on two of those principles - community responsibility and complete rehabilitation. The cost-benefit attitude adopted by ACC has compromised the application of these principles. Individuals are often forced to bear the losses caused by their injury while the rehabilitation available to claimants in these cases may be inadequate and fall below the standard contemplated by the Woodhouse Report. 54 ACC was grounded in a principled approach and has always been intimately and inextricably linked to values. These values have been subjected to change as political ideology, notably neo-liberalism, has waded into the arena of workers’ compensation. There are conflicting values that have yet to be resolved between those expounded by Woodhouse and those espoused by the neo-liberals. The legislation has bold purpose statements which are nevertheless undermined by the practical application of the tools contained in the legislation that allow ACC to suspend entitlement of weekly compensation before the injured person’s maximum vocational utility has been achieved.

Thirty-three years after it was introduced, the ACC scheme is at a crossroads. The National opposition has publicised its intention to privatise the Accident Compensation scheme, should it succeed at the 2008 general election. As with their 2005 election policy on ACC, the National Party have told employers and other potential political allies that they will allow private insurers to compete with ACC should they secure the Treasury benches in 2008. Although these statements have been couched in euphemistic terms: “this is not privatising ACC – merely giving employers a choice”, they clearly disclose National’s intention to privatise ACC.65 Their intention is to change ACC legislation 65 Wilkinson, Kate, National Party Spokeswoman for early in the first term in government. Private insurers are Labour and Industrial in business to make money for themselves. Privatisation Relations, in a speech to Lexis Nexis 2nd Annual would undermine the founding principles of the scheme Employment Law and and National’s own legacy. Human Resources Conference, 10 May Even if the government does not change after the 2008 2007. election, ACC remains an important issue for the incoming government. Whilst the current Labour-led government is inclined to take a whole-of-government approach to ensure 55 that government services are integrated, it also needs to include injured workers in this vision. If claimants are not completely rehabilitated then productivity suffers, with claimants often forced to shift from ACC onto welfare benefits. If rehabilitation policy and practices were designed to ensure claimants received sufficient rehabilitation to ensure a return to their maximum vocational utility, this would be another avenue open to the government to enhance productivity and skill levels, and address skill shortages.

Due to the inevitability of physical deterioration, the possibility of injury or occupational disease, and a nationwide skills shortage, the author believes that New Zealanders now need to enhance the social value of our accident compensation scheme. There is a need to refocus government policy on the work ability of aging workers. Alternative approaches to rehabilitation are crucial in order to sustain working lives, while skills must be diversified to enhance employability and mitigate financial losses for those who are injured, and for their families and the community as a whole.

56 Where to from here? – questions for politicians

The following questions, based on the information in this booklet, are provided for you to ask of your local candidates in the 2008 election.

• What is your party’s policy on the future of the current ACC scheme, which ensures that the state is the only insurer for personal injury?

• Do you think it’s appropriate for private insurers to replace ACC in providing compensation and rehabilitation for people who have suffered personal injury?

• Do you think ACC should, wherever possible, provide injured people with retraining and upskilling to enable them to return to work at the same or a better income level?

• Do you think it’s appropriate for ACC or private insurers to regard injured workers as fit for work whether or not a job is available for them?

57 Free at last: Rescuers pull Ricky Heihei to the surface after he was caught underground in a Newtown, Wellington drain for seven hours, in 1997. Suction from packed mud had trapped his foot, stranding him down a five metre deep hole.

After this accident he went back to work but then suffered a back injury which stopped him doing such physically demanding work. He went onto ACC, and trained to be a teacher over the next four years. He says “ACC have been very helpful”.

Photos: Craig Simcox Dominion Post. 58 Timeline

1891 Coal Mines Act – levy imposed on coal production to provide limited assistance to injured miners 1896 Brunner Mine Disaster – killing 65 miners 1898 Brunner Mine closes – remaining workers dismissed – widows sue employer – receive small lump sums. 1900 Workers Compensation scheme established (employers in dangerous trades required to insure their employees against injury or death – private insurers administer the claims) 1901 Accident branch of the State Insurance Office is established. 1914-1918 WWI injured soldiers return to high unemploy- ment and pensions less than the basic wage 1931 The Disabled Servicemen’s Re-establishment League is set up to assist injured soldiers obtain sheltered employment and retraining. 1939-1945 WWII injured soldiers are provided vocational rehabilitation through the Re-establishment League. 1947 Employers are required to insure with the State Insurance Office. 1947 Mr Herbert Bockett appointed Secretary of Labour and commences reform of the Department of Labour. Rehabilitation of incapacitated soldiers given a high priority. 1951 National reprivatises the scheme. A Workers Compensation Board established, to moderate profits made by private insurers through statutory oversight, also required to consider injury prevention and rehabilitation. Employers can now insure with private insurance companies. 1953 National Safety Association established – training in occupational health and safety offered. 1956 Weekly compensation increased to 80% of pre injury earnings, payable for up to 6 years. 59 1960 Hon Tom Shand appointed Minister of Labour by Mr . Mr Bockett appointed Chair of the Workers Compensation Board. 1962 Government Committee on absolute liability for motor vehicle accidents established and reports back. Richard Wild Solicitor General and member of Committee writes dissenting report calling for no fault motor vehicle accident insurance. 1963 General Election, National returned to office promising to steadily and systematically improve workers compensation. 1964 NZ unable to ratify ILO Convention 121 as NZ’s workers compensation provisions fail to meet the minimum standard. 1966 Royal Commission established to investigate Personal Injury in NZ. Owen Woodhouse is Chair, Herbert Bockett and Geoff Parsons appointed as members. 1967 The Royal Commission’s recommendations are released in the Woodhouse Report. 1969 White Paper presented to the House, authored by Geoffrey Palmer. 1969 General Election. National is returned to office. Hon Tom Shand dies 11 December. Jack Marshall assumes role as Minister of Labour. 1970 Gair Select Committee established – which produced a unanimous report to the House of Parliament. 1971 Accident Compensation Bill enters the House 1972 Accident Compensation Act 1972 is passed National for – 35 votes, Labour opposed – 34 votes. 1972 General Election National is defeated and Labour becomes Government, led by . 1973 Accident Compensation Amendment Act passed, Labour extends the scheme to non earners. 1974 The Accident Compensation Act enacted. New Zealanders lose the right to sue for personal injury and death caused by the negligent actions of others. In return a state agency, ACC established to administer a 24 hour, comprehensive scheme covering 60 all injuries. Initially the State Insurance Office manages claims. 1975 Committee established to consider extending the Accident Compensation scheme to sickness. 1975 General Election. Labour defeated, National becomes Government. 1977 ACC set up first branch office in Dunedin. 1977 Committee to investigate extending Accident Compensation to sickness disbanded. 1992 Accident Rehabilitation and Compensation Insurance Act 1992 regulates the amount of rehabilitation that can be provided Introduces the work capacity test that allows ACC to cease paying weekly compensation to those it deems can work 30 hours of more a week. Removes lump sum compensation, repeals permanent pensions. 1996 Amendment to ARCI Act provides for more flexibility to allow ACC to provide more effective rehabilitation. 1998 The National Government privatises insurance for workplace injuries. All other claims continue to be administered by ACC. Most small employers remain with the ACC established insurer At Work Insurance. 2000 The Labour-led Government restores ACC as the administrator for all claims, although it allows accredited employers to manage their own claims under contract to ACC. 2001 The Injury Prevention Rehabilitation and Compensation Act 2001 passed with the objective of restoring the vision expounded by Woodhouse. 2005 Injury Prevention, Rehabilitation and Compensation Amendment Act and Injury Prevention, Rehabilitation and Compensation Amendment Act (No. 2) passed 2007 Injury Prevention, Rehabilitation and Compensation Amendment Bill (No. 2) introduced to House 2008 PriceWaterhouseCoopers ACC Scheme review 61 Bibliography Texts Armstrong & Laurs (2007) Vocational Independence outcomes for ACC claimants. Commissioned by the Department of Labour. Campbell, Ian (1996) Compensation for Personal Injury in New Zealand- its rise and fall. Auckland: Auckland University Press. Department of Labour, Aftermath – how the lives of 15 ordinary New Zealanders have been affected by workplace injury and illness, 2002. Eldred-Grigg, Stevan (1990) New Zealand Working People 1890 to 1990. Palmerston North Dunmore Press Ltd Gustafson, Barry (1980) Labour’s Path to Political Independence – the origins and establishment of the 1900- 1919. Auckland: Auckland University Bindery. Gustafson, Barry (1986) The first 50 years: A history of the New Zealand National Party. Reed Methuan Publishers Ltd. King, Michael (2003), The Penguin History of New Zealand. Penguin Books (NZ) Ltd. Martin, John E (1996) Holding the Balance: a history of New Zealand’s Department of Labour 1981-1995. Canterbury University Press McPherson, Kathryn, Auckland University of Technology, Evaluation of Vocational Rehabilitation under the IPRC Act 2001, February 2007. Palmer, Geoffrey Compensation for Incapacity: a study of Law and Social Change in New Zealand and Australia. Oxford University Press Personal Injury – a commentary on the Report of the Royal Commission of Inquiry into Compensation for Personal Injury in New Zealand (1969). Wellington: Government Printer. PricewaterhouseCoopers, Accident Compensation Corporation in New Zealand, scheme review, March 2008 Richardson, Len (1995), Coal Class and Community – the United Mine Workers of New Zealand 1880 to 1960. Auckland: Auckland University Press. Royal Commission of Inquiry. (1967) Compensation for Personal Injury in New Zealand: Report of the Royal Commission of Inquiry. Wellington: Government Printer. Roth, Herbert (1973), Trade Unions in New Zealand-Past and Present. Wellington: A.H. & A.W. Reed Ltd. Sewell, Bill (2003) The Ballad of fifty-one. Wellington: HeadworX Publishers 62 The Law Commission (1988) Personal Injury: Prevention and Recovery. Wellington: NZLC R4 Simpson, Tony (1997) The Immigrants-The Great Migration From Britain to New Zealand, 1830-1890. Auckland: Godwit Publishing Ltd Sinclair, Keith and Harrex, Wendy (1978) Looking Back - a photographic history of New Zealand. Wellington: Oxford University Press Tennant, Margaret (1989), Paupers & Providers – Charitable Aid in New Zealand Wellington: Allen & Unwin NZ Ltd and Historical Branch of Internal Affairs, Port Nicholson Press. Wilson, Marie.G and Allison Enright. New Zealand’s Workforce Policy in Sharp, Andrew (ed) (1994) Leap Into the Dark. Auckland: Auckland University Press Workplace Relations Ministers’ Council, Comparative Performance Monitoring Report, Comparison of occupational health and safety and workers compensation schemes in Australia and New Zealand, Eighth Edition September 2006 Speeches Armstrong, Hazel. “Complete Rehabilitation – an assessment of the Woodhouse principles as they have been applied and their relevance in a modern context” (Rebuilding ACC Beyond 2000, Wellington, 23 July 1999). Wilson, Ross. “Rehabilitation and Return to Work – The New Zealand Experience under the Accident Compensation Scheme”. (“World at Work Forum” Rehabilitation 2000 Conference, Auckland, 18 September 1996). Sir Owen Woodhouse’s speeches: “The social challenge of personal injury”, Vancouver, August 1984. “Personal Injury – a basis for compensation”, Institute of Actuaries of Australia, 11 May 1988. Papers Department of Labour, Briefing – vocational rehabilitation. 4 April 2007. Articles Clayton, Alan. “Some Reflections on the Woodhouse and ACC legacy” (2003) 34 VUWLR 449, Duncan, Grant. “Moral Hazard and Medical Assessment” (2003) 34 VUWLR 433, 63 Duncan, Grant. “Advancing in Employment: the way forward for vocational rehabilitation” (2004) 35 VUWLR 801, Easton, Brian. “The Historical Context of the Woodhouse Commission” (2003) 34 VUWLR 207, McKenzie QC, Peter. “The Compensation Scheme No One Asked for: the origins of ACC in New Zealand” (2003) 34 VUWLR 193, Palmer, Sir Geoffrey. “The Future of Community Responsibility” (2004) 35 VUWLR 905, Purse, Kevin, Frances Meredith and Robert Guthrie. (2004) Neo- liberalism, Workers’ Compensation and the Productivity Commission. Journal of Australian Political Economy 54:45 Wilson, Ross. (2003) “1990s – decade of change” 34 VUWLR 937, Web Martin, John E Bockett Herbert Leslie 1905-1980 Dictionary of new Zealand Biography, updated 22 June 2007. Phillips, Jock. History of Immigration, Te Ara – The Encyclopaedia of New Zealand, updated 9-January-2007 URL:http://www.TeAra.govt.nz/NewZealanders/NewZealandPeoples/ HistoryOfImmigration/en accessed on 11 January 2007 ‘INSURANCE’, from An Encyclopaedia of New Zealand, edited by A. H. McLintock, originally published in 1966.Te Ara – The Encyclopedia of New Zealand, updated 26-Sep-2006 URL:http://www.TeAra.govt.nz/1966/I/Insurance/en ‘RETURNED SERVICES’ ASSOCIATION’, from an Encyclopaedia of New Zealand, edited by A.H. McLintock, originally published in 1966. Te Ara – The Encyclopaedia of New Zealand, updated 26-Sep-2006, URL: http://www.TeAra.govt.nz/1966/R/ ReturnedServicesAssociation/en Templeton, Hugh Shand, Thomas Philip 1911-1969 Dictionary of New Zealand Biography, updated 22 June 2007. ‘WAR – REHABILITATION’, from An Encyclopaedia of New Zealand, edited A.H. McLintock, originally published in 1966. Te Ara – The Encyclopaedia of New Zealand, updated 26-Sep-2006, URL: http://www.TeAra.govt.nz/1966/W/WarRehabilitation/en

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